Helgeson v. Powell
| Decision Date | 12 July 1934 |
| Docket Number | 6048 |
| Parties | GUDRUN HELGESON and COLLEEN HELGESON, a Minor, By and Through Her Guardian Ad Litem GUDRUN HELGESON, Appellants, v. GRANT POWELL, as Policeman of the City of St. Anthony, Idaho; JESSE H. JACKSON, as Deputy Sheriff of Fremont County, Idaho; NATIONAL SURETY COMPANY, a Corporation; STANDARD ACCIDENT INSURANCE COMPANY, a Corporation; J. A. FREDRICKSON, as Sheriff of Fremont County, Idaho; and P. S. WILCOX, GUS A. ISENBURG, E. D. DUKE, THOMAS B. HARGIS, DAN THOMAS, EDGAR M. CHAPMAN, JOSEPH ANDRASEN, TED BUTLER, W. G. JONES and GEORGE A. BROWNING, Jr., Respondents |
| Court | Idaho Supreme Court |
Appeal from District Court, Fremont County; C. J. Taylor, Judge.
Action by Gudrun Helgeson and Colleen Helgeson, a minor, by her guardian ad litem, Gudrun Helgeson, against Grant Powell, as policeman of the city of St. Anthony, Jesse H. Jackson, as deputy sheriff of Fremont County, the National Surety Company, and others. The case was dismissed as against the last-named defendant, and a verdict was returned for plaintiffs against the other defendants. From an order granting motions filed by all defendants except defendants named for judgment notwithstanding the verdict and from a judgment of dismissal, plaintiffs appeal. Motion by the last-named defendant to dismiss the appeal.
Appeal dismissed as to the last-named defendant, and judgment reversed, with directions.
L. Tom Perry and Merrill & Merrill, for Appellants.
The sufficiency of the pleadings cannot be determined on a motion for a nonsuit or directed verdict. (Sec. 7-224, I. C. A.; Mole v. Payne, 39 Idaho 247, 227 P. 23; Ludwig v. Ellis, 22 Idaho 475, 126 P. 769; Strong v Western Union Tel. Co., 18 Idaho 389, on p. 407, 109 P 910, Ann. Cas. 1912A, 55, 30 L. R. A., N. S., 409.)
Plaintiffs have a right to recover against the sureties on an officer's bond for wrongful death. (Tiffany on Death by Wrongful Act, p. 253; 17 C. J., p. 1229; State of Indiana v. Gobin, 94 F. 48; Northern P. Ry. Co. v Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513; State v. Walford, 11 Ind.App. 392, 39 N.E. 162; secs. 5-311, 57-812, 57-814, I. C. A.)
Where an officer acting under color of office unlawfully injures another both the officer and the sureties on his official bond are liable. The following authorities are selected from many on this point. (24 R. C. L. 965, 966, etc.; Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102; Abbott v. Cooper, 218 Cal. 425, 23 P.2d 1027; also, 14 P.2d 554; Jahns v. Clark, 138 Wash. 288, 244 P. 729.)
F. L. Soule and Thos. B. Hargis, for Respondents, except Grant Powell and National Surety Company. F. A. Miller, for Grant Powell and National Surety Company.
A deputy sheriff is not the agent of the sheriff, nor his servant, but acts in lieu of the sheriff and in his name, representing the sheriff officially, and his authority is limited to official acts. (Ivy v. Osborne et al., 162 Tenn. 470, 279 S.W. 384; Jones v. Van Bever, 164 Ky. 80, 174 S.W. 795, L. R. A. 1915E, 172.)
When an officer acts without a writ, or the writ under which he acts is void on its face, and there is no statute authorizing the act to be done without process, but the officer merely assumes to act as such because he is an officer, his sureties are not liable, under the rule adopted by this court and a majority of the courts. (Haffner v. United States F. & G. Co., 35 Idaho 517, 207 P. 716; Federal Reserve Bank v. Smith, 42 Idaho 224, 244 P. 1102; Jones v. Van Bever, supra.)
This action being brought under the wrongful death statute, and the surety not being the person causing his death, no action can be maintained against the surety under that statute. (Clark v. Goodwin, 170 Cal. 527, 150 P. 357, L. R. A. 1916A, 1142; Whittlesey v. City of Seattle, 94 Wash. 645, 163 P. 193, L. R. A. 1917D, 1084; Tann v. Western P. Ry. Co., 39 Cal.App. 377, 178 P. 971; Brown v. Wightman, 47 Utah 31, 151 P. 366, L. R. A. 1916A, 1140.)
Whenever the facts are not in dispute and their sufficiency to support a judgment or verdict is questioned or raised, there is nothing to be submitted to a jury and the court must determine the question as a matter of law. And so the question as to whether or not Deputy Sheriff Jackson had reasonable cause to believe that deceased had committed a felony, must be decided by the court. The court was, therefore, right in finally deciding it as a question of law by vacating the judgment on the verdict, as he ought to have granted the motion for directed verdict. (Ybaibarriaga v. Farmer, 39 Idaho 361, 228 P. 227; Chapin Co. v. Scott, 44 Idaho 566, 260 P. 172; Madsen v. Hutchison, 49 Idaho 358, 290 P. 208.)
This is an action to recover damages for the wrongful killing of one Harold Helgeson. The pertinent facts are substantially as follows:
During the late evening of April 25, 1932, at the home of respondent, Jesse H. Jackson, deputy sheriff of Fremont county, two girls reported to him that a man wearing white corduroy trousers and a blue coat was following them. When Jackson made inquiry as to what the man had done, one girl replied, "It is too terrible to tell." The girls pointed out the man who was then about half a block away. Jackson told the girls to go on home and that he would follow the man. Very soon thereafter Jackson got in his automobile and drove to the home of Grant Powell, a policeman of the city of St. Anthony, and explained to him what had happened, suggesting that they go and arrest the man. At the same time he described the manner in which the man was dressed, adding to the description given him by the girls that the man was wearing a light hat, and also the fact that he would recognize him. The two men then proceeded to the center of town in Jackson's car in search of the individual they were-seeking. Both men were dressed as ordinary individuals, with the exception that they both wore officers' stars and carried guns. As the officers approached Bridge Street they observed the now deceased, Harold Helgeson, who was dressed in a pair of white corduroy trousers and a blue coat. Upon observing Helgeson, Jackson said, "There is the man," and pointed Helgeson out to Powell. Jackson drove his car to the curb and stopped. Both men alighted from the car and Powell called to Helgeson to stop. Helgeson started to run and Powell pursued him, again calling to him to stop. Powell then fired two shots, the second shot striking Helgeson and killing him instantly. In the meantime Jackson had jumped in the car and started driving around the block with the apparent intention of meeting Powell and the man he was pursuing. Jackson came up to the point on the sidewalk where Helgeson had fallen about the same time that Powell reached him. Jackson then made the remark, "I see you got him," and "Well, what had we better do?" After this, with the assistance of another man who came to the scene, they took the deceased to a doctor's office.
The appellants instituted the action to recover damages against Powell and Jackson, and their respective sureties, and against J. A. Fredrickson, the sheriff, and his bondsmen, for the unlawful killing of Harold Helgeson.
At the commencement of the trial, upon motion for judgment on the pleadings, the court dismissed the cause as against the National Surety Company, surety for Grant Powell. The case, as to the other respondents, was submitted to the jury, which returned a verdict in favor of appellants and against all of respondents, with the exception of the National Surety Company, in the sum of $ 5,227.24. Judgment on the verdict was entered March 10, 1933. Thereafter all of the respondents, except Grant Powell, Jesse H. Jackson and National Surety Company, moved for judgment notwithstanding verdict. The court entered an order granting the motions and rendered judgment of dismissal in favor of respondents. This appeal is from the order and judgment.
Respondent, National Surety Company, surety for Powell, filed a motion to dismiss the appeal on the ground that the notice of appeal served and filed was not from the judgment on the pleadings in favor of said National Surety Company.
The only notice of appeal on file particularly recites that the appeal is, "from that certain 'Order Sustaining Motion for Judgment Notwithstanding Verdict,' and the whole thereof, signed on the 27th day of May, 1933, and entered in the above entitled Court and cause on the 31st day of May, 1933, by the terms of which said Order, Motion for Judgment Notwithstanding the Verdict was granted in favor of certain of the above named defendants and judgment ordered entered accordingly in said cause." And further:
The National Surety Company did not make any motion herein for judgment...
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